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WAIVER AND AMENDMENT NO. 1
To
AMENDED AND RESTATED CREDIT FACILITIES
AGREEMENT
(that was Effective March 20,
2001)
by and between
BANK OF AMERICA, N.A.
as Administrative Agent and a
Lender
and
THE OTHER LENDERS SIGNATORY
THERETO
and
YOUNG INNOVATIONS, INC.
as Borrower
In consideration of their mutual agreements herein
and for other sufficient consideration, the receipt of which is
hereby acknowledged, YOUNG INNOVATIONS, INC. ("Borrower"), BANK OF
AMERICA, N.A. (as "Administrative Agent") agree as
follows:
1. Definitions; Section References. The term "Original
Loan Agreement" means the Amended and Restated Credit Facilities
Agreement effective as of November 28, 2006, between Borrower,
Administrative Agent and the Lenders signatory thereto, as amended,
including without limitation, as amended by that certain Assignment
and Assumption between Administrative Agent, Lenders, JPMorgan
Chase Bank, N.A. and Borrower, of even date herewith that is
effective simultaneously herewith (the “Assignment and
Assumption”). The term "this Amendment" means this Amendment.
Capitalized terms used and not otherwise defined herein have the
meanings defined in the Original Loan Agreement, except that the
term “this Agreement” in the Original Loan Agreement
shall be deemed to mean the Original Loan Agreement as amended by
this Amendment. Section references are to sections of the Original
Loan Agreement unless otherwise indicated.
2.
Effective Date of this
Amendment. Provided that Administrative Agent has
received this Amendment fully executed by all parties hereto and
each of the documents and other items listed or described on
Exhibit A hereto as being required to be obtained, delivered or
satisfied on or before the Effective Date (as hereinafter defined),
with each being satisfactory to Administrative Agent and (as
applicable) duly executed and (also as applicable) sealed,
attested, acknowledged, certified, or authenticated, this Amendment
shall be effective as of October 1, 2007 (the “Effective
Date”), simultaneously with the effectiveness of the
Assignment and Assumption. If this Amendment does not become
effective, the Original Loan Agreement shall continue in full force
and effect as it existed in the absence of this
Amendment.
3.
Waiver. Effective as of September 28,
2007, Lenders hereby waive any and all Event(s) of Default that
occurred under Sections 16.1.5 and 16.1.6 as a result of
Borrower’s failure to timely notify Administrative Agent of
its creation of 2720 Corporate Parkway LLC ( 2720 ), an Illinois limited liability
company on January 2, 2007, as required under Section 13.9.11 and
its failure to cause 2720 to timely execute and deliver to
Administrative Agent an unconditional guaranty of the Loan
Obligations as required under Sections 8 and 14.15. The waivers
contained in this paragraph are specific in intent and are valid
only for the specific purpose for which given. Nothing contained
herein obligates Administrative Agent or any Lender to agree to any
additional waiver of any provision of any of the Loan Documents.
The waivers contained in this paragraph are waivers of known Events
of Default only, and shall not operate as a waiver of
Administrative Agent's or any Lender’s right to exercise
remedies resulting from (i) existing and/or continuing Defaults or
Events of Default of which Administrative
1406276.06
Agent or such Lender is not actually aware, or (ii)
other future Defaults or Events of Default, whether or not of a
similar nature and whether or not known to Administrative Agent or
such Lender.
4.
Amendments to Original Loan
Agreement. The Original Loan Agreement is amended as
follows, all such amendments to be effective on September 28, 2007,
unless otherwise indicated:
15.1. Special Definitions-Revisions.
The definitions of “EBITDA” and
“Adjusted EBITDA” in Section 15.1 are deleted and
replaced with the following definitions:
Adjusted EBITDA means,
with respect to any fiscal period of Borrower, EBITDA for such
fiscal period, minus the amount of EBITDA for such period which was
attributable to any line of business which has been sold,
transferred or otherwise disposed of during such period; provided,
however, that, if any Covered Person makes any Permitted
Acquisition during such fiscal period of Borrower, and the
Applicable Target Company Financial Statements are in form and
substance reasonably satisfactory to Administrative Agent
(including that they are prepared in accordance with past
practices), then the reported EBITDA of the Target for the
applicable fiscal periods ending prior to the date of consummation
of the Permitted Acquisition will be included in determining
Adjusted EBITDA for any such applicable fiscal period of Borrower
(including Borrower’s four fiscal quarters then ended);
provided further, however, that in determining EBITDA for such
Target Company for such applicable fiscal period of Borrower,
reasonable cost savings, expenses and other income statement
adjustments which are attributable to the change in ownership
and/or management resulting from such Permitted Acquisition that
are (i) set forth in a schedule delivered to the Administrative
Agent concurrent with the consummation of such Permitted
Acquisition, and (ii) approved by the Administrative Agent, shall
be deemed to have been realized on the first day of the applicable
fiscal period of Borrower (including the four fiscal quarters then
ended).
EBITDA means, with
respect to any fiscal period of Borrower, the net income of
Borrower for such fiscal period, as determined in accordance with
GAAP and reported on the Financial Statements for such
period, plus (i)
(A) Interest Expense in such period, (B) income tax expense in such
period, (C) depreciation and amortization expense in such period,
(D) total expenses associated with the non-cash portion of employee
stock compensation and (E) any extraordinary loss in such
period, minus (ii) any extraordinary gain in such period, in each case
calculated for Borrower for such period.
15.1. Special Definitions-New.
The definition of “Applicable Target Company
Financial Statements” is hereby added to Section 15.1 in
alphabetical order:
Applicable Target Company Financial
Statements means, with respect to any
Target Company acquired in a Permitted Acquisition, the audited
annual financial statements of such Target Company for any
applicable fiscal period(s), or, to the extent such Target Company
has no audited historical financial statements, the
management-prepared annual financial statements of such Target
Company for any applicab
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